The University Record, February 1, 1999
By Kerry Colligan
Shaw (left) spoke with student panelists and Martin Luther King Jr. Day planners before his talk on affirmative action. Photo by Bob Kalmbach
According to Shaw, associate director-counsel for the National Association for the Advancement of Colored People (NAACP)'s Legal Defense Fund, the current race-racism debate is being played out in affirmative action disputes.
Color, Shaw said, becomes the most important factor in identification, the "sum total" of how society orients itself toward an individual.
Shaw spoke Jan. 25 as part of Martin Luther King Day commemoration activities, sponsored by the MLK Symposium Planning Committee, Black Law Students Association and Michigan Journal of Race and Law.
Civil rights organizations like the NAACP have rallied not around color, but around "color blindness." Justice Harlan's dissenting opinion in Plessy vs. Ferguson became a model for the argument that the United States Constitution is color blind. Yet, a close examination of Harlan's opinion highlights a system of legal equality and social inequality.
"The problem of race in this country has never been mere color consciousness," Shaw stated. "The problem has been white supremacy and racism, not race. We have set up jurisprudence which now defines color blindness as the goal, "even if achieving color blindness means leaving intact the effects of racism; even if it means ignoring the fact that we are a color conscious society in almost everything we do. So, we end up leaving a whole range of social conditions and inequities beyond the reach of the law."
That social environment peaked last year in the Hopwood case. The University of Texas made "gratiutous" decisions, Shaw said. "They unnecessarily put at risk affirmative action, not only at [the University of Texas], but also in the entire Fifth Circuit and potentially the entire nation. Almost every decision was a decision that made affirmative action more vulnerable, and more likely to fall."
Shaw did not comment on the lawsuits pending against the University because he is involved in the litigation of both. He did say that one of the affirmative action cases--currently there are cases pending in Massachusetts, Georgia and Maryland, as well as those against the U-M--will reach the Supreme Court.
"I still am optimistic. We may lose affirmative action as we know it, but the problem of race isn't going to go away. The question is not whether we see race. It is how we proceed having seen it."